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Constitution nearly impossible to amend: Is the bar too high?

"Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy.

One in a series of articles. You can read the whole series here.

With admirable humility, George Washington himself (who had presided over the Constitutional Convention) acknowledged in a letter to his nephew Bushrod (yes, Bushrod) Washington that the Constitution was far from perfect.

Deals had to be struck, he implied. The Framers were aware of problems in the new plan of government that they had found “unavoidable” if they were going to be able get all 13 states to stay within the reorganized nation. Therefore, he told his nephew (who would become a Supreme Court justice), the charter would have to be amended by “the people” after experience showed them where the shortcomings were. Here’s the Washingtonian paragraph:

The warmest friends and the best supporters the Constitution has, do not contend that it is free from imperfections; but they found them unavoidable and are sensible, if evil is likely to arise therefrom, the remedy must come hereafter; for in the present moment, it is not to be obtained; and, as there is a Constitutional door open for it, I think the People (for it is with them to Judge) can, as they will have the advantage of experience on their Side, decide with as much propriety on the alterations and amendments which are necessary [as] ourselves. I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us.

Really very wise, sweet, avuncular, and with a touching confidence in both the people and the mechanism that the Framers had provided. Washington truly imagines that the amendment process would function in an almost ideal fashion. Problems will come to light that the Framers couldn’t have foreseen and a significant consensus will form in the country to amend the Constitution.

Theoretically, if any of the constitutional features discussed in this series really render the U.S.A. dysfunctional, any of them (with the possible exception, as mentioned two chapters ago, of the provision that gives equal voting power to all states in the Senate) could be amended to render our government more workable. I say theoretically, because as a practical matter, the Constitution has always been extremely difficult and now borders on impossible to amend.

Old, short and hard to amend

A British publisher of law books called Hart Publishing (slogan: “Good books for lawyers”) organized a series on comparative constitutions of the world and assigned the volume on the U.S. Constitution to distinguished lefty law professor Mark Tushnet of Harvard Law School. To summarize briefly for an international audience what distinguishes our Constitution from others in the series, Tushnet chose three qualities. The U.S. charter, he said, is “old, short and difficult to amend.”

Blunt to the point of rudeness? Decide for yourself. Personally, I’m not easily offended. But it’s difficult to dispute any of Tushnet’s three descriptors.

To say that ours is the shortest Constitution in the world is simply a matter of counting the words (yes, including the amendments). But the consequence of all that brevity is that we don’t really have clear instructions from the Framers and ratifiers of the Constitution on a great many topics.

Ours is undeniably the oldest written Constitution on Earth, created in the summer of 1787 by 55 men  who, however brilliant and well-intentioned, could not possibly have imagined the Internet nor even television, modern warfare, nor the reality that the superpower they helped launch would one-day be in a state of perpetual low-grade warfare against such unimaginable entities as international communism or international jihadism.

The Framers’ decision that a president should be commander-in-chief of the military but only when Congress has declared war offers us little meaningful guidance on 21st-century questions of war and peace. As Constitution scholar (and frequent critic) Sanford Levinson of the University of Texas argues, we would not turn to Gen. Washington (for all his fine attributes) for guidance on how to conduct or defend against a nuclear attack.

As for the governmental structure designed by the Framers, the fact that they believed U.S. politics would develop without national political parties was (and remains) a rather large problem, since the two-party system has become the elephant in the room of U.S. politics.

The combination of a relative paucity of words written by men unaware of so many issues on which we would like to have Framer guidance means that our system, as evolved, must rely to a large degree on the Supreme Court justices to discover/interpret/imagine what the Constitution is telling us about topics on which the document is really silent, like the question of whether life begins at conception or whether corporations have certain characteristics of persons, and, if so, which characteristics.

Powerful court

This is among the reasons that our Supreme Court is perhaps the most powerful of any court created by the world’s constitutions.

If, for religious reasons, you feel it necessary to believe that the Supreme Court is actually able to channel the intentions of the Framers, then go ahead. Tushnet suggests that a great deal of what the court does is actually change the Constitution, so that it means something different or means something new in areas where it previously meant nothing at all.

The last of Tushnet’s descriptors, “hard to amend,” is also hard to dispute. Apparently, in its day, the old Constitution of Yugoslavia was the hardest in the world to amend, but that constitution (and the Yugoslav Federation) is no more, and those who study comparative constitutions generally agree that ours is the hardest in the world to amend.

As you probably know, the requirements are these: A resolution proposing a constitutional amendment must pass the House and the Senate by a two-thirds majority of each body. Obviously, it has been done a few dozen times over the centuries, but not for the past 42 years.

Imperfect Union: The Constitutional roots of the mess we're inYes, that’s right. There are proposals for constitutional amendments floating around in every session, but none has received the necessary two-thirds of both houses since 1971. That one, which became the 26th Amendment, lowered the voting age to 18. That’s an interesting example, since such an amendment in today’s climate would be viewed (probably justifiably) as a naked effort by Democrats to increase the youth vote, which Democrats dominate.

Republicans would unify against it (much like Minnesota DFLers unified against the voter ID amendment in November). The point is that in today’s political culture, it’s hard for the two parties to agree on much, and the requirement of two-thirds of both houses is a very, very high bar in a closely divided nation that sees much through partisan lenses.

But wait. Even a proposed amendment that managed to cross the congressional two-thirds-of-both-houses threshold must be ratified by three-fourth of the states. That’s 38 out of 50. An even higher bar. Every state (except in Nebraska, which has a one-house legislature) requires separate passage by both houses. So, theoretically, rejection by one house in each of 12 states (or, you might say, 12 out of the 99 houses of the combined state legislatures) could stop the amendment.

Can you stand one more layer of icing on the amendments-are-hard cake? Seven states, by their own constitutions or by state law or rule, require a supermajority vote in at least one house of the legislature to ratify a federal constitutional amendment. That supermajority practice was challenged in court, but the U.S. Supreme Court ultimately ruled that each state can set its own threshold for approval of a proposed amendment.

So, yes, constitutional amendments must clear a very high bar. I don’t suggest that it should be easy to amend the Constitution. But is the bar too high?

Levinson calls Article V of the Constitution, which sets that bar, an “iron cage” that prevents needed reforms in the Constitution.

And yet, as you know, the Constitution has been formally amended (27 times). The amendments, taken as a group, are nearly as long as the original seven articles. And the amendments include some of the most beloved features of the Constitution. Still, when you look at the story of the successful amendments as the next chapter will do, there’s less there than meets the eye.

Comments (9)

  1. Submitted by Ray Schoch on 12/10/2012 - 07:40 am.

    My 2¢

    For what little it’s worth, I’m inclined to think it’s OK that the U. S. Constitution is difficult to amend. Yes, it might be just a bit TOO difficult, but my conservative roots show in the fact that I’d rather err on the side of caution than regret incorporating a change into the country’s guiding document that turns out – like prohibition – to have created more problems than it solves.

    The key, at least for me, is “consensus.”

    The difficulties in amending the Constitution can be overcome, and have been overcome, when the country really is essentially in agreement that some facet of government or policy needs to change. On a more local scale, that was the basis for my own opposition to both the gay marriage and voter ID proposals in Minnesota in the recent election. They were obviously partisan in inspiration, and a desire to somehow avoid that partisan appearance seems to have been a primary motivation (along with getting out the conservative vote) in putting them on the ballot as constitutional amendments rather than even-more-obviously-partisan legislation.

    I agree that the practical effect of our reluctance to tinker with the document hands more power to the SCOTUS than to Supreme Courts in any other society, but that, too, strikes me as an “err on the side of caution” mechanism. There are times when it makes me grind my teeth in frustration, but it’s the tradition I grew up in, and am comfortable with. It’s also one of the reasons why I liked the suggestion in a previous episode of this series of an 18-year term for justices on the SCOTUS, with someone being helped out the door, so to speak, every two years. That would allow for a change in viewpoints of the institution as a whole over the course of nearly two decades, and that seems to me to be enough time for the society to make up its collective mind about a problem or issue and its legal solution.

    Could the difficulty of changing with the times turn out to be some kind of “fatal flaw?” Perhaps. No human society of which I’m aware has proved itself to be immune to deterioration and collapse, but the reasons for the fall of cultures are as diverse as the cultures themselves.

  2. Submitted by Eddie H-J on 12/10/2012 - 12:26 pm.

    bypass legislatures

    Of course the state bicameral (except Nebraska) ratifications required can be bypassed by submitting the proposed amendment to “conventions” in each state in lieu of the legislature. This has been done exactly once, to repeal Prohibition.

  3. Submitted by Daniel Duckworth on 12/10/2012 - 01:35 pm.

    National factions (parties)

    “As for the governmental structure designed by the Framers, the fact that they believed U.S. politics would develop without national political parties was (and remains) a rather large problem, since the two-party system has become the elephant in the room of U.S. politics”.

    We can thank the 17th Amendment for this. In my opinion the worst thing that has happened to the Constitution. It insured large national factions (parties) would control the government.

  4. Submitted by Jon Kingstad on 12/10/2012 - 02:17 pm.

    Cannot disagree

    that the Constitution is too difficult to amend. Whether that’s good or bad today depends on the issue. Depending on our viewpoints, we can be grateful or not whether it’s so difficult that the “pro-lifers” cannot define the moment of conception as defining a person or whether a person can or should include a “corporation.”

    The fact is that the Supreme Court does amend the Constitution and precisely for this reason that it is too difficult to amend. It’s probably going to have to suffice as the country grows larger and more diverse in population.

    • Submitted by Paul Brandon on 12/10/2012 - 07:17 pm.

      Well, sort of

      Court judgements do not change the Constitution, just our interpretation of it.
      Unlike an amendment, all it takes is a majority of voting court members to overturn it.
      Much less permanent; just contrast the number of amendments with the number of Supreme Court rulings.

      • Submitted by Jon Kingstad on 12/10/2012 - 08:09 pm.

        Interpretation not amendment?

        What’s the difference? It works out the same to about the same thing in the end. I believe calling the Supreme Court’s amendments to the Constitution by “interpreting” it is a pretty little fiction we accept because it works. Sort of like “sovereignty by the people.” As if we’re each our own sovereign.

  5. Submitted by david unowsky on 12/10/2012 - 06:54 pm.

    Oldest constitution?

    The constitution of San Marino has been in effect since 1600.

    • Submitted by Paul Brandon on 12/10/2012 - 09:05 pm.

      Well, sort of

      There is no single document; rather an accretion of statues.
      The 1600 Statutes might be more equivalent to the Magna Carta.
      According to Wikipedia, their Declaration of Citizen Rights dates from 1974, and sounds like it would be equivalent to our (much earlier) Bill of Rights (the first ten amendments).

  6. Submitted by Paul Linnee on 12/11/2012 - 10:55 am.

    I think you missed a way to amend the constitution

    As I read the following Article V, I see that even if Congress were not to choose or decide to amend, the states could initiate the amendment process on their own (via a Constitutional Convention —– and wouldn’t that be an interesting event!!!)

    The text in question:

    Article. V.

    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

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